dissenting:
As an intellectual exercise, I disagree with the majority’s analysis of South Carolina law as it relates to the Catawbas’ duty to assert their claim within ten years of the Tribe’s 1962 dissolution. In my view, either the removal of disability provision of S.C.Code § 15-3-3701 or the more general statute of limitations in S.C.Code §. 15-3-3402 would effectively bar the Ca-tawbas’ instant possessory action. My principle objection to the majority’s decision is more fundamental, however. In light of the Supreme Court’s discussion of the effect of the Catawba Indian Tribe Division of Assets Act, 25 U.S.C. §§ 931-938 in South Carolina v. Catawba Indian Tribe, 476 U.S. 498, 106 S.Ct. 2039, 90 L.Ed.2d 490 (1986), and the well-established jurisdictional doctrine of Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218 (1914), I am persuaded that federal jurisdiction over the Catawbas’ claim has never existed.
In the original complaint, the Catawbas sought to invoke federal jurisdiction on three bases: (1) federal question pursuant *1459to 28 U.S.C. § 1331 [jurisdiction over “all civil actions arising under the Constitution, laws or treaties of the United States”]; (2) Indian tribe pursuant to 28 U.S.C. § 1362 [jurisdiction over “all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws or treaties of the United States”]; and (3) regulation of commerce pursuant to 28 U.S.C. § 1337 [jurisdiction over a civil action arising under “any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies”]. The last theory was advanced to support the allegation that an 1840 conveyance of the land at issue by the Catawbas was achieved in contravention of the 1799 Indian Nonintercourse Act, 25 U.S.C. § 177. The Supreme Court’s decision in Catawba leaves no doubt, however, that neither section 1362 nor 1337 was ever a legitimate ground for federal litigation.
In Catawba, the Court quoted prominently from section 5 of the Catawba Act, which provides that: Based on that provision, the Court clearly concluded that after the 1962 effective date of the Catawba Act, the trust relationship between the United States and the Cataw-bas was dissolved, the federal statutory protection for Indians was no longer applicable to them and the laws of South Carolina controlled their right, if any, to the land claimed in this case. Catawba, 106 S.Ct. at 2043.3
The constitution of the tribe adopted pursuant to sections 461, 462, 463, 464, 465, 466 to 470, 471 to 473, 474, 475, 476 to 478, and 479 of this title shall be revoked by the Secretary. Thereafter, the tribe and its members shall not be entitled to any of the special services performed by the United States for Indians because of their status as Indians, all statutes of the United States that affect Indians shall be inapplicable to them, and the laws of the several States shall apply to them in the same manner they apply to other persons or citizens within their jurisdiction. Nothing in this subchapter, however, shall affect the status of such persons as citizens of the United States.
It is now beyond question that when the plaintiffs/appellees initiated their action in 1980 they were not Indians as that term is used in federal law. At most, the appellees are a collection of South Carolina residents of Indian descent who are successors in interest to a defunct tribe — a point expressly acknowledged by the Supreme Court when it described appellees as “a nonprofit corporation organized under the laws of South Carolina in 1975.” 106 S.Ct. at 2040 n. 2. The essential jurisdictional prerequisite for 28 U.S.C. § 1362 — an “Indian tribe ... duly recognized by the Secretary of the Interior_” was plainly absent.4 Similarly, the dissolution of the Catawbas in 1962 undermined the jurisdictional validity of the Nonintercourse Act claim asserted under 28 U.S.C. § 1337. The continued existence of a trust relationship is required in order to invoke a Nonintercourse Act claim in federal court. See e.g., Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1975).
Without sections 1362 or 1337, the only remaining ground on which appellees might assert federal jurisdiction is the general federal question provision of section 1331. A review of the history of this case reveals, however, that jurisdiction on that theory runs afoul of the long-established rule that a federal question must appear on the face of a “well-pleaded complaint.” See Wright, Miller & Cooper, Federal Practice and *1460Procedure: Jurisdiction 2d § 3566. The Catawbas’ initial complaint, which asserted purely state claims for ejectment and trespass damages, failed that test. Indeed, federal law did not enter this case until it was belatedly asserted by the Catawbas in response to the defendants’ attempted reliance upon South Carolina statutes of limitation.
The Supreme Court in Taylor, supra, unhesitatingly applied the well-pleaded complaint rule to defeat a possessory land claim advanced by individual Indians. The Indians had alleged that certain defendants were in possession of Indian land in violation of “legislation of Congress restricting the alienation of lands allotted to the Choctaw and Chickasaw Indians.” 234 U.S. at 74-75, 34 S.Ct. at 724. The Court reasoned that federal jurisdiction was lacking since the action was one for ejectment and the allegations involving federal law were “neither essential nor appropriate.” Id. In approving of the result in Taylor, modern commentators have agreed that an action for the possession of land does not arise under federal law simply because there is a potential federal issue in the chain of title. Wright, Miller & Cooper, Id., see also F. Cohen, Handbook of Federal Indian Law, 312 (1982 ed.).
The subsequent decision in Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974), recognized an exception to the Taylor rule for possessory actions brought by an Indian tribe in a current trust relationship with the federal government. In circumstances where the land title is under “continuous” federal protection, the Court reasoned that a right of possession necessarily raises a federal question. Id. at 676-77, 94 S.Ct. at 781-82. I see nothing in Oneida, however, that would extend its reach to situations where there is no trust relationship that would indicate a “continuing federal interest” in the land in dispute. 414 U.S. at 683, 94 S.Ct. at 785, Rehnquist, J., concurring.5 It follows, therefore, that the Ca-tawbas, who unquestionably had no trust relationship with the United States, have asserted what must be seen as a purely state law cause of action falling squarely within the jurisdictional limitations of Taylor v. Anderson.
I, of course, recognize that it is late in the day to raise a jurisdictional objection to this prolonged litigation. It is also true that this Court, as did the district court below and the Supreme Court above, has addressed this case on the merits without examining the jurisdictional implications. This omission is in large part a result of the parties’ failure to raise the issue. It cannot, however, relieve us of our fundamental responsibility to insure that we decide only those cases that fall within our lawful authority as a court of limited jurisdiction.
We certainly cannot assume that the Supreme Court’s treatment of the merits in Catawba or even its remand of the state law issues to this Court amounts to a finding of jurisdiction. Jurisdiction was not specifically addressed in Catawba. Moreover, the Court itself has acknowledged on other occasions that the passing of a jurisdictional question sub silentio does not resolve that issue. Hagans v. Lavine, 415 U.S. 528, 534-35 n. 5, 94 S.Ct. 1372, 1378 n. 5, 39 L.Ed.2d 577 (1974). The existence of jurisdiction remains open for consideration when properly raised.
The implications of the majority’s decision are profound. The ownership interests of over 25,000 South Carolina landowners will be impaired and in many cases overturned notwithstanding chains of title of previously unquestioned validity. If South Carolina law, which the Supreme Court has recognized as controlling, corn-*1461pels that result then so be it. It offends reason and justice, however, for the assessment of South Carolina law to be conducted by a court without jurisdiction and with no special familiarity with the relevant law.6 I am persuaded that, today, we are such a court. Accordingly, I respectfully dissent from the majority’s resolution of this matter.
. The majority mechanically rejects any role for § 15-3-370 on the ground that it specifically applies only to minors, mental incompetents, and prisoners. The majority fails to recognize, however, that the statute was broadly written to cover all classes of citizenry normally assumed to be under a legal disability. See 51 Am.Jur.2d, Limitations of Action §§ 178 ef seq. Although the South Carolina legislature did not expressly provide for Indians, it clearly did intend that any South Carolina citizen whose legal status excused a timely assertion of legal rights would pursue those rights within ten years of a change in that status. The Catawbas' action, in my view, falls within the broad intent of the statute by analogy and should be barred for that reason.
. In reasoning that Indian title is legal title conferring a presumption of possession under § 15-67-210 and, thereby defeating the ten-year statute of limitations provided in § 15-3-340, the majority has permitted an exception to devour the rule. South Carolina has clearly sought to impose finality in potential land disputes by requiring a party out of actual possession to bring an action within ten years. The only exception to that general rule is the presumption of possession accorded the holders of “legal title" by § 15-67-210. Logically, however, "legal title” must be some mechanism that would give adequate notice to another claimant that the statute of limitations is unavailable.
South Carolina law unquestionably treats recordable titles with special deference. South Carolina Code § 15-3-380 specifically provides that a chain of title "by virtue of a written instrument” extending for forty years "shall be deemed valid against the world.” In my view, the presumption of possession in § 15-67-210 is a product of the same rationale that produced § 15-3-380. Although it has not been expressly asserted on appeal, I am convinced that the present South Carolina landholders, who undoubtedly have chains of title exceeding forty years, are entitled to prevail under 15-3-380 and to defeat the presumption of possession in § 15-67-210.
In reaching a contrary position, the majority has fallen into the morass created by careless language in older South Carolina property law decisions such as Haithcock v. Haithcock, 123 S.C. 61, 115 S.E. 727 (1923). In Haithcock, the term "title” is alternatively used to refer to a superior possessory interest as well as the legal indicia of that interest. Significantly, however, the court in Haithcock discussed the presumption of possession only in connection with a "paper title" — a recordable instrument. 123 S.C. at 69-70, 115 S.E. at 729-30. By focusing instead upon the four ways upon which a pos-sessory interest in land can be validly obtained in South Carolina and granting to each a presumption of possession, the majority has created a statute of limitations that doesn’t limit anyone except parties who could not prevail in any event. I find this interpretation of the South Carolina statute utterly irrational. I also find the failure to address § 15-3-380 particularly troubling in light of the extensive treatment of South Carolina law attempted in the majority opinion.
. The Court's reasoning was supported prominently by citation to cases such as Larkin v. Paugh, 276 U.S. 431, 48 S.Ct. 366, 72 L.Ed. 640 (1928) (termination of trust relationship rendered consideration of land disputes appropriate in state courts, "the land being there.”) Catawba, 106 S.Ct. 2045 n. 19.
. The unavailability of section 1362 has particular significance in light of the fact that the State of South Carolina is a named defendant. The statute abrogates a state’s normally applicable immunity under the eleventh amendment. Lac Coarte Oreilles Band, etc. v. State of Wisconsin, 595 F.Supp. 1077 (W.D.Wisc.1984). If section 1362 is, as I believe, inapplicable, the Catawbas' action against the State is constitutionally suspect.
. Certainly the Supreme Court did not intend for its decision to "disturb the well-pleaded complaint rule of Taylor v. Anderson," Oneida, 414 U.S. at 677, 94 S.Ct. at 782. Lower courts have also recognized that Oneida left Taylor intact. See State of New York v. White, 528 F.2d 336, 339 (2d Cir.1975) (concluding that Oneida was a “narrow ruling” based on the "unique relationship” between the federal government and Indian nations). In the present case, the “unique relationship” had obviously been terminated well before the litigation began. It is a clear failure to appreciate the interplay of Taylor and Oneida, as well as a serious misreading of Catawba that dooms the effort to assert jurisdiction in section VII of the majority opinion.
. The Supreme Court’s remand of the state law issue in Catawba was based upon the traditional deference accorded the Courts of Appeals and the district courts to resolve state law issues arising within their jurisdictions. E.g. Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480 (1949). That deference, however, is rooted in the assumption that at least some of the district and appellate judges involved are usually from the state where the legal question has arisen and, thus, are trained in that state’s law. That situation is not present here where neither the district judge who originally heard this case nor any member of this appellate court is a South Carolina jurist. By bringing this case in federal court and proceeding against a broad range of commercial defendants thereby compelling the recusal of many members of this Court, the Catawbas have managed to have their state law case decided by a court with substantially reduced familiarity with South Carolina law.